DECISION ' This is an appeal against the order, dated 26-2-1990, passed by the learned Presiding Officer, Fourth Sindh Labour Court, Karachi, whereby grievance petition of the appellant was dismissed.
2. The brief facts of the case are that the appellant was admittedly a workman employed by the respondents and was General Secretary of the `C.B.A.' for number of years. On 7-11-1988 he was charge-sheeted for certain acts of misconduct of disorderly behaviour with the Medical Officer and after domestic enquiry he was dismissed from service. The appellant served grievance notice upon the respondent and failing to get any redress he filed grievance petition before the learned Labour Court which was resisted by the respondents on the ground, that acts of misconduct were duly proved against the appellant in the domestic enquiry.
3. I have heard Mr. M.L.Shahani, learned Advocate for the appellant and Mr.Gulzar Ahmed, learned Advocate for the respondents and have also gone through the record and proceedings of the case.
4. It is admitted fact that the appellant entered the room of the doctor without permission when two patients namely Rasool Bux and Muhammad Siddique were already sitting for examination in the doctor's room and he produced Leave Application before him but did not produce his Medical Card. It is also admitted that the appellant used the telephone of the doctor without permission and talked to the General Manager. What is disputed is that he did not direct the doctor to sign the Leave Application, that he did not tear the application and that he did not lose temper and misbehave with the doctor. Mr.Shahani has submitted that the acts of misconduct which are more or less admitted as pointed above would at the most constitute breach of Medical Rules, which would be punishable under Standing Order 15(1) for which the maximum punishment is fine as laid down therein and not dismissal. He has further submitted that with regard to the other acts of misconduct which are not admitted even the two witnesses namely Rasool Bux and. Muhammad Siddique, who were admittedly present at the time of incident, had not supported the management before the Enquiry Officer and, therefore, these charges could not be said to have been proved against him.
5. Mr. Gulzar Ahmed on the other hand submitted that the disorderly conduct of the appellant with regard to all acts of misconduct stands proved through the evidence of Medical Officer, Sabir Hussain, who immediately made written complaint to the competent authority on the basis of which charge-sheet was framed against the appellant. It is submitted that the appellant in his cross-examination had admitted that he had no enmity with Medical Officer. He however further stated that doctor was annoyed with him because of his complaint over workers' affairs, when he was General Secretary and on account of which he was made to proceed on forced leave. I find that this question was put to him in the cross-examination of the doctor before the Enquiry Officer but he denied any knowledge of any complaint by the appellant against him and there is no other evidence produced in support of his contention by the appellant. Mr.Jamil Ahmed, Deputy Manager (Administration) was examined by the respondent, but no question was put to him in the cross- examination with respect to the alleged complaints against the doctor. The mere fact, that the doctor had proceeded on long leave, would not raise presumption that he had proceeded on long leave because of the complaint of the appellant. This plea was also not raised in the grievance notice or even in the grievance application. The appellant had not specifically pleaded the enmity with the doctor even in his affidavit-in evidence, but had come out with it in the cross-examination after admitting that he had no personal enmity with Dr.Sabir Hussain. In view of the fact, that the evidence of Dr. Sabir Hussain is supported by two witnesses on material facts the Enquiry Officer does not appear to be wrong in accepting the evidence of the doctor in toto, even when on certain facts the two witnesses have not specifically supported. These disputed acts are in fact natural consequence of admitted acts. When the appellant admittedly gave his Leave Application to the doctor immediately on entering room, without waiting for him to finish already two sitting patients, the statement of the doctor, that the appellant directed him to sign Leave Application does not look improbable. Similar is the position with the allegation of the doctor, that when he refused to sign the Leave Application without production of Medical Card, the attitude of appellant became haughty and immediately made telephone call from his phone without permission and subsequently tore the application. The fact that the appellant did not produce Medical Card and that he telephoned the General Manager without permission of the doctor are admitted and also proved through the two other witnesses. In view of these admitted facts, the statement of the doctor that the manner of the appellant became haughty and that he tore Leave Application when he refused to sign also looks more probable than improbable.
6. The only question that requires consideration is whether these acts of the appellant merely amount to disregard or disobedience of rules or acts of disorderly behaviour or acts subversive of discipline.
7. Mr. M.L. Shahani, learned counsel for the appellant has relied upon the case of Pakistan International Airlines Corporation v. Junior Labour Court No,IV, Karachi, PLD 1978 SC 239. In that case complaint was against an act of airhostess who left the place of duty. Their Lordships while discussing as to what could be considered as act subversive of discipline observed:- "Coming now to clause (h), the words 'any act subversive of discipline' in it must be construed ejusdem generis with the preceding words namely, `riotous or disorderly behaviour'. These words, in ordinary parlance means 'disturbance of peace and lawless behaviour,' respectively. Therefore, the words 'act subversive of discipline' must also be construed in that context. They reflect an act which has some criminality in it."
' Their Lordships, however, observed that the act of air-hostess was merely breach of rules and not act subversive of discipline.
8. Mr. Gulzar Ahmed, learned counsel for the respondents, had relied upon the case of Abdul Rashid Qureshi v. Industrial Court of West Pakistan & another, 1967 PLC 525. In that case the appellant who was General Secretary of the Employees Union wrote a letter to the Director Labour Welfare, West Pakistan in which he had alleged that Personnel Manager had arranged the casual labour strike with the intention to make a public contract with a labour contractor. Their Lordships of Supreme Court of Pakistan held that this was a direct attack on probity of the superior officers of the company and there could be no question but that such conduct was calculated to be destructive of discipline.
9. The misconduct allegedly committed by the appellant did not constitute a single separate act but consisted of series of acts committed in the same transaction. In such a case it has to be seen whether such acts would be simple breach of rules or had an element of criminality in them. When questioned as to how the appellant had misbehaved the doctor replied in the cross-examination that the way in which he came in his room without permission and without showing the Medical Card, the way and the tone, in which he insisted for the grant of leave and the way he used telephone without permission to talk to the General Manager was conduct which was uncivilised and undisciplined. Admittedly two other workmen were sitting there and were watching the conduct of the appellant. Under the circumstances the conduct and behaviour cannot but be held to be disorderly behaviour subversive of discipline.
10. The appellant has alleged that he had been victimized after defeat of his union as `C.B.A.' because he remained General Secretary of the C.B.A. For long time. The C.B.A. Union of the appellant was admittedly defeated in 1987, while the appellant was charge-sheeted in the end of 1988 on specific charges. It is C simply a vague allegation of victimization which under the circumstances does not have much weight. It is settled law that the mala fide or victimization has to be specifically pleaded and strictly proved. There is no such proof. There is also no proof or allegation, that any other officer of the previous C.B.A. Union has been victimized or removed from service. This contention of the appellant therefore, has no force.
11. Mr. M.L. Shahani, has further submitted that the Enquiry Officer had cross-examined the appellant which shows that he acted as 'prosecutor' and was `biased'. There is nothing on record to show that the appellant objected to this conduct of the Enquiry Officer but continued to participate in the proceedings. This plea, subsequently after the enquiry report went against him would not be of much value.
12. For the aforesaid reasons, I see no merits in this appeal which is, accordingly, dismissed.